Liebig v. Kirchoff

#26840, #26841, #26893-aff in pt, rev in pt & rem-SLZ
2014 S.D. 53
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
SHANE LIEBIG, Plaintiff and Appellee,
and concerning,
LIEBEN PROMOTIONS, LLC, a South
Dakota Limited Liability Company, KENNETH
REINERT, and SPEARFISH EXCAVATING,
INC., a South Dakota Corporation, Interested Parties,
v.
EDWARD C. KIRCHOFF and CROSS
COUNTRY REAL ESTATE, LLC,
a Wyoming Limited Liability Company, Defendants and Appellants,
and
WILLIAM J. “BILL” KEESTER, Defendant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
****
THE HONORABLE ROBERT A. MANDEL
Judge
****
THOMAS E. BRADY
ERIC T. DAVIS of
Brady Pluimer, PC
Spearfish, South Dakota Attorneys for plaintiff
and appellee.
JOHN K. NOONEY
ROBERT J. GALBRAITH of
Nooney Solay & Van Norman, LLP
Rapid City, South Dakota Attorneys for defendants
and appellants.
****
CONSIDERED ON BRIEFS
ON MAY 27, 2014
OPINION FILED 07/23/14
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ZINTER, Justice
[¶1.] Shane Liebig sued Edward Kirchoff for specific performance of an
alleged oral contract to purchase real property owned by Kirchoff. Liebig also sued
for fraud and deceit. Kirchoff counterclaimed for “unjust enrichment/quantum
meruit” arising out of Liebig’s use of the property. After a bench trial, the circuit
court denied Liebig’s claim for enforcement of the alleged contract. A jury
determined the remaining claims. The jury awarded Liebig compensatory and
punitive damages on his fraud-and-deceit claim. The jury awarded Kirchoff
damages on his “unjust enrichment/quantum meruit” claim. Kirchoff and Liebig
both appeal. We affirm in part, reverse in part, and remand for a new trial on
damages related to Liebig’s fraud-and-deceit claim.
Facts and Procedural History
[¶2.] In May 2010, Shane Liebig and Kenneth Reinert leased and operated
the Black Hills Speedway in Rapid City. During the 2010 racing season, Liebig
attempted to purchase the Speedway, but the owners declined, opting to sell the
property at auction.
[¶3.] Before the auction, Edward Kirchoff signed an agreement with a real
estate agent identifying Cross Country Real Estate, LLC (CCRE), a company
Kirchoff owned, as a prospective buyer of the Speedway. The agreement also
indicated that Liebig was the authorized representative of CCRE to bid on the
Speedway. Liebig and the real estate agent, acting on behalf of CCRE, purchased
the Speedway for $350,000 at the auction, and the property was transferred to
CCRE.
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[¶4.] Liebig and Kirchoff had a business relationship before the auction.
Kirchoff had helped finance Liebig’s purchase of a different commercial property.
According to Liebig, Kirchoff orally agreed to a similar financing arrangement for
the Speedway. Liebig testified that before the auction, he and Kirchoff orally
agreed that Kirchoff would purchase the Speedway and later convey it to Liebig on
certain terms. Kirchoff disputed this testimony.
[¶5.] From November 2010 to March 2012, while CCRE was the record title
owner, Liebig possessed the property and operated the Speedway. During that
time, Liebig invested time and money improving the Speedway. Reinert, his
company (Spearfish Excavating, Inc. (SEI)), and other third parties also provided
labor and materials to improve the Speedway.
[¶6.] In February 2011, a convenience store owner contacted Liebig about
purchasing part of the Speedway’s highway frontage. Liebig indicated that others
had inquired about similar purchases but development never seemed feasible
because Rapid City refused to plat the property and the South Dakota Department
of Transportation refused to allow full vehicle access. Regardless, the owner offered
$250,000 for a one-acre lot if the property could be platted and vehicle access
approved. Liebig informed Kirchoff of the offer.
[¶7.] Liebig then began efforts to get the property platted and vehicle access
approved. According to Liebig, when it appeared the approvals were possible, he
and Kirchoff entered into another oral agreement under which Kirchoff would
develop the frontage property and add the costs of development to Liebig’s purchase
price.
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[¶8.] In February 2012, the Department of Transportation granted full
vehicle access, and Rapid City approved a preliminary plat for the Speedway’s
frontage property. Liebig testified that after he informed Kirchoff of the approvals,
Kirchoff told Liebig that “things [were] going to change.” Liebig testified that
Kirchoff told Liebig that Kirchoff was going to take possession and control of the
Speedway, and that Liebig owed Kirchoff rent for the time Liebig operated the
Speedway.
[¶9.] Liebig subsequently sued Kirchoff for enforcement of the alleged
purchase agreement. He also sued for fraud and deceit. Kirchoff counterclaimed,
alleging “unjust enrichment/quantum meruit.” Reinert and SEI were joined as
parties after Reinert claimed in a deposition that he also had a right to purchase
the Speedway. However, Reinert and SEI never followed through and filed a claim
against Kirchoff.
[¶10.] Following a bench trial, the circuit court ruled that Liebig failed to
establish a contractual right to purchase the Speedway. The court found that
“Liebig and Kirchoff never reached a meeting of the minds as to the essential terms
of the contract.” A jury decided the remaining claims. The jury awarded Liebig
compensatory and punitive damages on his fraud-and-deceit claim. The jury also
awarded Kirchoff damages on his “unjust enrichment/quantum meruit” claim. The
circuit court awarded Liebig costs and disbursements.
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[¶11.] Kirchoff raises the following issues on appeal:
1. Whether the circuit court erred in denying Kirchoff
summary judgment on Liebig’s fraud-and-deceit claim.
2. Whether the circuit court erred in denying Kirchoff’s
motion to dismiss Reinert and SEI as parties to the
litigation.
3. Whether the circuit court erred in admitting Liebig’s
evidence of damages for the value of labor and materials
Reinert and SEI supplied to improve the Speedway.
4. Whether the circuit court erred in admitting Liebig’s
evidence of damages for the value of labor and materials
supplied by nonparties to improve the Speedway.
5. Whether the circuit court erred in admitting Liebig’s
evidence of damages incurred before he learned that
Kirchoff would no longer adhere to the alleged oral
agreement.
6. Whether the circuit court erred in awarding Liebig costs
and disbursements as the prevailing party.
By notice of review, Liebig raises the following issues:
7. Whether the circuit court erred in denying Liebig a
judgment as a matter of law on Kirchoff’s “unjust
enrichment/quantum meruit” counterclaim.
8. Whether Liebig, who allegedly used the property in
reliance on Kirchoff’s fraudulent statements, can be liable
as a matter of law to Kirchoff for any benefits Liebig
received from that use.
9. Whether the circuit court erred in concluding that no oral
contract was formed for Liebig to purchase the Speedway
from Kirchoff.
Decision
1. Denial of Summary Judgment on Fraud and Deceit
[¶12.] Kirchoff argues that the circuit court erred in denying his motion for
summary judgment on Liebig’s fraud-and-deceit claim. Kirchoff contends that
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Liebig did not identify specific material facts of fraud and deceit sufficient to resist
summary judgment.
[¶13.] “[T]hose resisting summary judgment [must] show that they will be
able to place sufficient evidence in the record at trial to support findings on all the
elements on which they have the burden of proof.” Bordeaux v. Shannon Cnty. Sch.,
2005 S.D. 117, ¶ 14, 707 N.W.2d 123, 127 (quoting Chem-Age Indus., Inc. v. Glover,
2002 S.D. 122, ¶ 18, 652 N.W.2d 756, 765). Therefore, on his fraud-and-deceit
claim, Liebig had the summary judgment burden to identify evidence suggesting: (1)
that Kirchoff made a statement of fact to Liebig about the sale of the Speedway; (2)
that Kirchoff knew this statement was untrue, or that he recklessly made it; (3)
that Kirchoff intended to deceive Liebig; and (4) that Liebig justifiably relied on the
statement to his detriment. See Ehresmann v. Muth, 2008 S.D. 103, ¶ 20, 757
N.W.2d 402, 406 (citations omitted); N. Am. Truck & Trailer, Inc. v. M.C.I. Commc’n
Servs., Inc., 2008 S.D. 45, ¶ 8, 751 N.W.2d 710, 713 (citations omitted).
[¶14.] In reviewing the adequacy of summary judgment responsive showings,
we “look at all the evidence.” Rumpca v. Brenner, 2012 S.D. 33, ¶ 8, 814 N.W.2d
128, 130 (emphasis added) (citation omitted). In this case, Kirchoff moved for
summary judgment after the bench trial. In response to Kirchoff’s statement of
undisputed facts, Liebig relied on the testimony from the bench trial regarding
representations allegedly made by Kirchoff. Liebig testified that based on those
representations, he was led to believe that Kirchoff agreed to finance and sell Liebig
the Speedway. Liebig also testified that in reliance on Kirchoff’s statements, Liebig
and others began improving the Speedway. Liebig further testified that once the
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Department of Transportation granted full vehicle access and Rapid City approved
the preliminary plat for the Speedway’s frontage property, 1 Kirchoff changed the
alleged agreement to sell the property. According to Liebig, Kirchoff also changed
the alleged agreement to develop the frontage property and add the costs to Liebig’s
purchase price. We conclude that the record contained sufficient facts or inferences
of fact to support findings on the elements of fraud and deceit. The representations
supporting fraud and deceit were disputed, but reasonable doubts concerning
genuine issues of material fact must be resolved against Kirchoff. See, e.g., De Smet
Farm Mut. Ins. Co. v. Busskohl, 2013 S.D. 52, ¶ 11, 834 N.W.2d 826, 831. The
circuit court did not err in denying Kirchoff’s motion for summary judgment on
Liebig’s fraud-and-deceit claim.
2. Motion to Dismiss Reinert and SEI
[¶15.] Kirchoff argues that the circuit court erred in denying his motion for
summary judgment seeking to dismiss Reinert and SEI as parties to the litigation.
Kirchoff contends that after the circuit court ruled there was no contract to
purchase the Speedway, the only remaining claims against him did not involve
Reinert and SEI. Reinert and SEI filed no claim against Kirchoff, and they did not
respond to his summary judgment motion. Kirchoff contends that he was
prejudiced because the circuit court admitted evidence about the value of labor and
materials Reinert and SEI provided to improve the Speedway.
1. According to Liebig, these approvals increased the potential value of the
Speedway. The $250,000 offer for the one-acre plot if the approvals were
granted was only $100,000 less than the total auction price for the nearly
forty-acre Speedway property.
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[¶16.] Even if the circuit court erred in denying Kirchoff’s motion, Kirchoff
suffered no prejudice from the alleged error. As discussed in the next issue, the
circuit court prohibited admission of evidence of the value of Reinert’s and SEI’s
improvements to the extent that they might claim those damages. The evidence
was admitted only as a part of Liebig’s claim. Because that evidence would have
been admitted even if Reinert and SEI had been dismissed, Kirchoff has not
established prejudice from the alleged error. We affirm on this issue. See Sejnoha
v. Buchanan, 71 S.D. 220, 223, 23 N.W.2d 142, 143 (1946) (“Error without prejudice
is not a ground for reversal.”).
3. Value of Labor and Materials Supplied by Reinert and SEI
[¶17.] Before the jury trial, Kirchoff filed a motion in limine seeking to
exclude “[a]ny references to damages sustained by [Reinert] or [SEI.]” The circuit
court granted the motion “insofar as [Reinert] or [SEI] are not making [a] claim for
damages” and denied the motion “insofar as the value of labor and materials
supplied by [Reinert] or [SEI] are part of [Liebig’s] claim[.]” At trial, Liebig offered
evidence of the value of labor and materials supplied by Reinert and SEI as a part
of his damages claim.
[¶18.] Kirchoff argues that the circuit court erred in admitting evidence of
the value of labor and materials provided by Reinert and SEI. Liebig responds that
Kirchoff failed to preserve this issue for appeal because the court’s in limine ruling
was not a definitive ruling and Kirchoff did not object at the time the evidence was
offered at trial.
[¶19.] “Once the court makes a definitive ruling on the record admitting or
excluding evidence, either at or before trial, a party need not renew an objection or
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offer of proof to preserve a claim of error for appeal.” SDCL 19-9-3 (Rule 103(a)). A
“definitive” ruling is “a final and authoritative determination regarding [the]
admission of . . . evidence[.]” State v. Johnson, 2009 S.D. 67, ¶ 14, 771 N.W.2d 360,
366.
[¶20.] In this case, the circuit court’s in limine ruling was a final and
authoritative determination regarding the admission of evidence of the value of
labor and materials provided by Reinert and SEI. The court definitively ruled that
the evidence was admissible insofar as it was part of Liebig’s claimed damages.
Therefore, Kirchoff’s claimed error was preserved for appeal.
[¶21.] On the merits, Kirchoff argues that the circuit court erred because
Liebig cannot recover damages for the value of labor and materials provided by
Reinert and SEI. Kirchoff points out that Liebig did not pay Reinert and SEI, nor
did Liebig present evidence of an obligation to pay. Therefore, Kirchoff contends
that Liebig suffered no detriment arising from Reinert’s and SEI’s improvements,
and evidence of those improvements was inadmissible to prove Liebig’s damages. 2
[¶22.] Because the jury found in favor of Liebig, Kirchoff was liable to Liebig
for any damages that Liebig suffered or sustained as result of Kirchoff’s fraud and
deceit. See SDCL 20-10-1 (“One who willfully deceives another, with intent to
induce him to alter his position to his injury or risk, is liable for any damage which
he thereby suffers.”); see also SDCL 21-3-1 (“For the breach of an obligation not
2. We review “a decision to admit or deny evidence under the abuse of discretion
standard.” JAS Enters. v. BBS Enters., 2013 S.D. 54, ¶ 21, 835 N.W.2d 117,
125 (quoting Ferebee v. Hobart, 2009 S.D. 102, ¶ 12, 776 N.W.2d 58, 62). This
standard applies to decisions on motions in limine. Id. (citation omitted).
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arising from contract, the measure of damages, except where otherwise expressly
provided by this code, is the amount which will compensate for all the detriment
proximately caused thereby, whether it could have been anticipated or not.”); Hoff v.
Bower, 492 N.W.2d 912, 914 (S.D. 1992) (“The right to damages for deceit . . . is
founded upon the theory of full compensation for the injury sustained.” (citation
omitted)). Therefore, Liebig was entitled to claim damages that he suffered or
sustained.
[¶23.] However, Reinert and SEI made no claim against Liebig for the value
of the labor and materials they provided to improve the Speedway. The record
reflects that Reinert had provided improvements at the Speedway without
compensation since 2008, before CCRE’s purchase of the property. Because Liebig
presented no evidence that he paid for, or was obligated to pay for, Reinert’s and
SEI’s labor and materials, evidence of the value of those improvements was
irrelevant in the litigation. To compensate Liebig for the cost of Reinert’s and SEI’s
labor and materials would compensate Liebig for damages he did not suffer or
sustain. Therefore, the evidence of the value of labor and materials provided by
Reinert and SEI was irrelevant and inadmissible. See SDCL 19-12-2 (Rule 402)
(“Evidence which is not relevant is not admissible.”). The circuit court abused its
discretion in admitting this evidence.
[¶24.] Liebig, however, contends that he was entitled to the value of labor
and materials supplied by Reinert and SEI because “[h]ad Kirchoff not committed
fraud, Liebig would have [had] a right to purchase the Speedway together with the
improvements made.” But Liebig was not deprived of “the right to purchase” the
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Speedway because of Kirchoff’s misrepresentations. The circuit court found that
Liebig had no legal right to purchase the Speedway because Liebig and Kirchoff had
not entered into a contract for the purchase of the property. And as we explain
below, the circuit court did not err in making that determination. Therefore,
Liebig’s inability to acquire the Speedway with its improvements was caused by his
failure to obtain a contract to purchase. And because Liebig cites no authority that
a verdict in his favor on his fraud-and-deceit claim gave him an additional legal
right to purchase the Speedway, Liebig’s claim for improvements provided by
Reinert and SEI fails.
[¶25.] Liebig, however, points out that the circuit court gave a jury
instruction entitling him to recover damages for improvements provided by third
parties. Liebig argues that because Kirchoff failed to reiterate his objections to
third-party improvements when the instructions were settled, that instruction
became the law of the case. See Alvine Family Ltd. P’ship v. Hagemann, 2010 S.D.
28, ¶ 20, 780 N.W.2d 507, 514 (“Absent a proper objection, we have long held that
the jury instructions become the law of the case.” (citations omitted)).
[¶26.] Liebig’s argument fails because Kirchoff made a sufficient objection to
the instruction. Although Kirchoff did not repeat the arguments made in his
motion in limine, he explained that his objection to the instruction was based on his
previous motions. This objection advised the circuit court of the possible error in
the jury instruction and afforded the court the opportunity to correct the
instruction. See Duda v. Phatty McGees, Inc., 2008 S.D. 115, ¶ 27, 758 N.W.2d 754,
762 (“An attorney must be clear when objecting to jury instructions so the trial
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court is advised of what possible errors exist and be granted the opportunity to
correct any instructions.” (citation omitted) (internal quotation marks omitted)).
Kirchoff preserved the issue for appellate review.
[¶27.] Kirchoff also established prejudice. If the value of the labor and
materials supplied by Reinert and SEI is subtracted from the jury’s award, the jury
awarded more than Liebig’s remaining claimed damages for fraud and deceit.
Because the jury’s award exceeded the amount Liebig was entitled to claim, we
reverse the award and remand for a new trial on damages.
4. Value of Labor and Materials Supplied by Other Nonparties
[¶28.] Like the preceding issue, Kirchoff argues that evidence of the value of
labor and materials supplied by others who were not parties to the litigation was
irrelevant and inadmissible. Kirchoff points out that Liebig did not present
evidence that he paid for, or was obligated to pay for, the nonparties’ labor and
materials. Because those improvements are like those supplied by Reinert and SEI,
and because we are remanding for a new trial on damages, we need not discuss
each of the other nonparty improvements. On remand, the circuit court should,
consistent with this opinion, only admit evidence of nonparty improvements that
Liebig paid for, had an obligation to pay for, or for which some valuable quid pro
quo was exchanged.
5. Damages Liebig Suffered Before Discovering the Fraud and Deceit
[¶29.] Kirchoff argues that Liebig cannot recover fraud-and-deceit damages
he suffered before February 14, 2012, because Liebig testified that he did not
discover Kirchoff’s fraud and deceit until that date. Damages are recoverable for
fraud and deceit because the tortfeasor intentionally deceives another into
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detrimental action by a seemingly true statement of fact, which is later discovered
to be untrue or to have been recklessly made. See Ehresmann, 2008 S.D. 103, ¶ 20,
757 N.W.2d at 406 (citations omitted); N. Am. Truck & Trailer, Inc., 2008 S.D. 45, ¶
8, 751 N.W.2d at 713 (citations omitted); see also SDCL 20-10-1 to -2. Therefore, by
definition, the victim of fraud and deceit is entitled to damages incurred before
discovery of the fraud and deceit. Indeed, the victim suffers damages because he is
unaware that the tortfeasor’s statements are fraudulent or deceitful when made.
The circuit court did not err in admitting evidence of fraud-and-deceit damages
incurred by Liebig before he discovered the fraud and deceit.
6. Costs and Disbursements
[¶30.] Because we are reversing and remanding for a new trial on damages,
we do not reach this issue. The circuit court should reconsider its costs-and-
disbursements award following the ultimate disposition of this case.
7. “Unjust Enrichment/Quantum Meruit”
[¶31.] Kirchoff counterclaimed for “unjust enrichment/quantum meruit.”
Kirchoff claimed that Liebig benefited from the use of the Speedway in 2011, but he
did not pay for that use. Kirchoff argued that it was inequitable for Liebig to
receive that benefit without paying for it.
[¶32.] Before Kirchoff’s counterclaim was submitted to the jury, Liebig moved
for a judgment as a matter of law. He renewed the motion after trial. See SDCL
15-6-50(a)-(b). Liebig contended that Kirchoff did not offer sufficient evidence of the
value of the benefit Liebig received. The circuit court denied both motions. The
jury awarded Kirchoff $36,000 on the counterclaim. On appeal, Liebig argues that
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the circuit court abused its discretion in denying his motions for judgment as a
matter of law.
[¶33.] Evidence was admitted at trial regarding the value of the use of the
Speedway. Liebig testified that he leased the Speedway in 2010 for $36,000. He
also submitted the lease agreement confirming that amount. Kirchoff argues that
the 2010 payment was sufficient evidence of the value of the benefit Liebig received
for use of the Speedway in 2011.
[¶34.] In resolving sufficiency of evidence issues, this Court “examine[s] the
record to determine only if there is competent and substantial evidence to support
the verdict.” Bertelsen v. Allstate Ins. Co., 2013 S.D. 44, ¶ 16, 833 N.W.2d 545, 554
(quoting Roth v. Farner–Bocken Co., 2003 S.D. 80, ¶ 20, 667 N.W.2d 651, 661). In
this case, the jury could have reasonably concluded that the $36,000 paid by Liebig
in 2010 was evidence of a $36,000 benefit Liebig received for use of the Speedway in
2011. Drawing all reasonable inferences in favor of Kirchoff, we conclude that the
circuit court did not abuse its discretion in denying Liebig’s motions for judgment as
a matter of law. See id. (“All conflicts are resolved and all reasonable inferences are
drawn in favor of the prevailing party.” (citation omitted)).
8. Liebig’s Liability for Use of the Speedway
[¶35.] Liebig argues that this Court should hold, as a matter of law, that a
party who uses real property in reliance on another party’s fraudulent statement
cannot be liable for the value of the benefit received from that use. Liebig raises
this issue for the first time on appeal. “We have consistently held that this Court
may not review theories argued for the first time on appeal.” Alvine Family Ltd.
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P’ship, 2010 S.D. 28, ¶ 21, 780 N.W.2d at 514 (citation omitted). We decline to
address this issue.
9. Oral Contract for the Sale of the Speedway
[¶36.] Liebig argues that the circuit court erred in finding that he and
Kirchoff did not form an oral contract for the sale of the Speedway. Liebig contends
that the circuit court made its finding under the mistaken belief that the parties
failed to agree to the material terms of a contract. Liebig misreads the circuit
court’s findings of fact. 3
[¶37.] “There must be mutual assent or a meeting of the minds on all
essential elements or terms in order to form a binding contract.” Vander Heide v.
Boke Ranch, Inc., 2007 S.D. 69, ¶ 20, 736 N.W.2d 824, 832 (quoting Read v.
McKennan Hosp., 2000 S.D. 66, ¶ 23, 610 N.W.2d 782, 786). “Whether there is
mutual assent is a fact question determined by the words and actions of the
parties.” Id. (citation omitted).
[¶38.] The circuit court found that mutual assent did not exist on all the
material terms of the contract. Liebig, however, emphasizes that the circuit court
found his testimony “as to the parties’ agreement” credible. According to Liebig, by
finding his testimony credible, the court accepted his testimony in which he
testified to the terms of the alleged agreement.
3. “We review the circuit court’s findings of fact under the clearly erroneous
standard.” Vander Heide v. Boke Ranch, Inc., 2007 S.D. 69, ¶ 17, 736 N.W.2d
824, 831 (quoting City of Deadwood v. Summit, Inc., 2000 S.D. 29, ¶ 9, 607
N.W.2d 22, 25).
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[¶39.] Liebig, however, takes the court’s credibility finding out of context and
fails to consider the court’s other findings of fact. Although the court found Liebig’s
testimony credible, it also found “that there was no agreement concerning the
acreage of real property that would be transferred to Liebig. Specifically, there was
no agreement as to whether the entire parcel or only a portion would be
transferred.” This finding was not clearly erroneous.
[¶40.] The bench-trial transcript reflects that it was unclear whether Liebig
was to buy the entire Speedway property, including the highway frontage, or
whether he was only to buy the racetrack portion. Liebig testified that “[he] was
known as the owner of the speedway[.]” But he also conceded that it was not until
he was approached about the sale of the frontage property that he had discussions
with Kirchoff about who was going to realize or receive the money from the sale of
the property. Liebig’s own testimony supports the circuit court’s finding “that there
was no agreement concerning the . . . real property that would be transferred to
Liebig.” Therefore, mutual assent between Kirchoff and Liebig on a material
term—a description of the land—was missing. Cf. LaMore Rest. Grp., LLC v. Akers,
2008 S.D. 32, ¶ 15, 748 N.W.2d 756, 761 (explaining that for land sale contracts, a
description of the land is a material term); Amdahl v. Lowe, 471 N.W.2d 770, 774-75
(S.D. 1991) (concluding that a material term of an enforceable land sale contract
includes a description of the land to be conveyed).
[¶41.] “Consent is not mutual unless the parties all agree upon the same
thing in the same sense.” SDCL 53-3-3; see also Geraets v. Halter, 1999 S.D. 11, ¶
16, 588 N.W.2d 231, 234 (“An agreement is the result of a mutual assent of two
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parties to certain terms, and, if it be clear that there is no consensus, what may
have been written or said becomes immaterial.” (citation omitted)). Kirchoff and
Liebig’s post-auction discussion concerning the frontage property supports the
absence of mutual assent to the property to be conveyed. See Geraets, 1999 S.D. 11,
¶ 16, 588 N.W.2d at 234 (“Ensuing negotiations evidence absence of intent that the
purchase agreement constitutes a final and complete agreement.” (citations
omitted)). The circuit court did not clearly err in finding that Liebig and Kirchoff
never reached a meeting of the minds as to the material terms of the contract.
[¶42.] Affirmed in part, reversed in part, and remanded for a new trial on
damages related to Liebig’s fraud-and-deceit claim.
[¶43.] GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and
WILBUR, Justices, concur.
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